DNYANDEO BHAGWANTA YENAREversusTHE STATE OF MAHARASHTRA

2026:BHC-AUG:38136


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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT AURANGABAD

                            CRIMINAL APPEAL NO.420 OF 2010

                Dnyandeo Bhagwanta Yenare,
                Age : 52 years, Occupation : Service,
                R/o Raitale, Tq. Parner,
                District Ahmedngar.
                                                        ...Appellant/ accused
                      - Versus -

                The State of Maharashtra.
                                                        ...Respondent/ State.

                                               …
                Shri Joydeep Chatterji, Advocate for the appellant/ accused.
                Mrs. Bharati B. Gunjal, APP for the respondent/ State.
                                               …

                                   CORAM : SUSHIL M. GHODESWAR, J.

                                   DATE : 18 August 2026


                JUDGMENT :-

                1.          By this appeal filed under Section 374(2) of the

                Code of Criminal Procedure (for short, ‘the CrPC’), the

                appellant/ accused challenges the judgment and order dated

                23.09.2010 passed by the learned Additional Sessions Judge,

                Ahmednagar, in Special Case No.12/2005 by which, he has been

                convicted for offence punishable under Section 7 of the

                Prevention of Corruption Act, 1988, (for short, ‘the PC Act’) and
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he is sentenced to suffer Rigorous Imprisonment for two years

and to pay fine of Rs.3000/-, in default of payment of fine, he is

directed to suffer further Rigorous Imprisonment for six months.

He is also convicted for the offence punishable under Section

13(2) r/w 13(1)(d) of the PC Act and is sentenced to suffer

Rigorous Imprisonment for two years and to pay fine of

Rs.3000/- and in default, to suffer Rigorous Imprisonment for six

months. Both the sentences were directed to run concurrently.


2.          The brief facts leading to filing of the present appeal

are as under:


      (a)   The    appellant–accused     Dnyandeo         Bhagwanta

Yenare was serving as a Police Havildar at Jamkhed Police

Station. The complainant Sheshrao Bhanudas Doke (PW-1) and

his relatives were involved in dispute with certain persons,

against whom complaints had been lodged at Jamkhed Police

Station. On 16.05.2005, the appellant/ accused informed the

complainant (PW-1) that a complaint had been lodged against

him and others and called him to the police station. According to

the prosecution, the accused demanded Rs.2,500/- for settling the

matter, which was subsequently reduced to Rs.1,000/-. The
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accused allegedly asked the complainant (PW-1) to bring the said

amount on 18.05.2005.


      (b)      The complainant was unwilling to pay the amount

and approached the Anti-Corruption Bureau, Ahmednagar, on

17.05.2005. Accordingly, a trap was arranged on 18.05.2005 in

the presence of panch witnesses. After the pre-trap formalities,

the complainant and panch witness proceeded to Jamkhed Police

Station. The accused met the complainant at tea canteen opposite

the police station and again demanded the amount. The

complainant allegedly paid Rs.1,000/- treated with anthracene

powder to the accused, who accepted it and kept it in his pocket.

On receiving the predetermined signal, the ACB officers and

panch witness entered the canteen and apprehended the accused.

The tainted amount was recovered from his pocket. The accused,

however, claimed that the amount was towards hand loan

transaction.


      (c)      The ACB officer thereafter lodged the FIR for

offences punishable under Sections 7 and 13(1)(d) read with

Section 13(2) of the Prevention of Corruption Act, 1988. After

completion     of   investigation   and   obtaining    sanction         for
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prosecution under Section 19 of the Act, charge-sheet was filed

against the accused.


      (d)   The learned trial Court framed charge (exhibit 7) for

the aforesaid offences. The accused pleaded not guilty and

claimed to be tried. The prosecution examined the complainant

(PW-1), panch witness Nandu Parkhe (PW-2), the sanctioning

authority Vishwas Patil (PW-3) and the Investigating Officer

Munja Mulse (PW-4) and relied upon the documentary and trap

evidence i.e. pre-trap panchanama (exhibit 16) and post-trap

panchanama (exhibit 17). The incriminating circumstances were

put to the accused under Section 313 of the Code of Criminal

Procedure. He denied the allegations and contended that he had

neither demanded nor accepted any bribe and that the amount

recovered from him had been sent by one Ramesh Doke (DW-1)

through the complainant (PW-1). He also questioned the validity

of the sanction (exhibit 24). In defence, the appellant/ accused

examined Ramesh Tukaram Doke (DW-1) and Bhausaheb

Nanasaheb Doke (DW-2) as defence witnesses.


      (e)   After recording evidence and hearing the appellant

and prosecution side, the learned Special Judge was pleased to
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pass the impugned judgment as above.


3.           Learned advocate appearing for the appellant

submitted that the testimony of PW-1 complainant as regards

demand from the accused of Rs.1000/- suffers from omission

and, therefore, it cannot be relied upon. Learned advocate has

invited attention of this Court to the testimony of PW-1 wherein,

it is stated that the accused had told the complainant that he has

withdrawn the case which was lodged against him and he

demanded Rs.1,000/- from the complainant as the matter is

settled. The said omission has been proved through the evidence

of Investigating Officer (PW-4), who has categorically stated in

his deposition that the complainant has not stated before him that

the accused asked the complainant if Rs.1000/- are brought by

him as settled. Learned advocate pointed out that even evidence

of PW-2 Nandu Parkhe (panch witness) cannot be relied upon for

the reason that the said panch witness has stated that the copy of

his statement was given to him 04-05 months back by the ACB

office. This witness admitted that after reading the said statement,

I deposed before the Court.


4.           Learned advocate for the appellant has relied upon
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the judgment of this Court in Suresh Purushottam Ashtankar vs.

The State of Maharashtra and another, 2015 ALL MR (Cri) 4243

wherein, the Division Bench has observed that the Investigating

Officer or the Police Officer should take care and steps in order

to see that the culprit is brought home to his guilt, however, at the

same time, the Police Officer should not show unnecessary

interest which would unnecessarily create doubt about the Police

Officer. Learned advocate for the appellant has pointed out that

in Suresh Ashtankar (supra), the Division Bench has considered

the observations of the learned Single Judge Bench in Sharad

Namdeorao Shirbhate vs. State of Maharashtra, 2006(2) Mh.L.J.

(Cri) 1210 wherein, the learned Single Judge has observed that

“There would indeed be nothing wrong in the witness refreshing

his memory, but that ought to be done before the Court and not

outside the Court. In order to test the veracity of a witness, he

would be required to recollect the incident out of his own

memory and should be falter on some material aspect, he could

be allowed to refresh his memory with reference to the

contemporaneous records of the incident created by the police. It

would not be permissible for such witness to stealthily refresh his

memory before entering the Court and depose about the entire
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evidence giving minute details as if he was reeling them out from

his memory. Therefore, the objection to the reliability of

evidence of PW-2 Prabhakar taken by learned Counsel for the

appellant is valid.” The said view of the learned Single Judge

Bench came to be upheld by the learned Division Bench. Learned

advocate for the appellant submits that the fact remains that the

witness can be given the statement to read in the Court room,

however, not outside the court room. In the case in hand, the

panch witness was given his statement 04-05 months back.

Therefore, according to learned advocate, the testimony of this

panch witness cannot be relied upon.


5.          Learned advocate for the appellant further pointed

out that immediately after trap, the appellant/ accused has given

explanation which is at exhibit 39 that he has given the amount

of Rs.1000/- as hand loan to Ramesh Doke, who was examined

as defence witness (DW-1). Learned advocate has pointed out the

explanation of the appellant that on 16.05.2005, the appellant had

gone to the house of DW-1 Ramesh Doke for demanding hand

loan, however, he was not found at home. On 18.05.2005, the

appellant had informed the complainant (PW-1) to come to the
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Police Station along with Rs.1000/- which is given to Ramesh

Doke (DW-1). In short, according to the appellant, the amount

which he had accepted was not bribe amount, but the hand loan

amount given to Ramesh Doke. Learned advocate for the

appellant, therefore, submitted that Ramesh Doke (DW-1) and

Bhausaheb     Doke    (DW-2)     have    duly    corroborated            the

explanation, therefore, the prosecution case as regards demand is

not sustainable.


6.           Learned advocate for the appellant further submitted

that the learned Special Judge committed grave error by

convicting the appellant as it has not properly appreciated

evidence brought on record. The prosecution has failed to prove

guilt of the appellant beyond reasonable doubt. Learned advocate

submitted that the prosecution has virtually failed to prove that

the demand is made by the accused and mere acceptance of

amount is not sufficient to prove the demand. The prosecution

witnesses have not corroborated each other at the time of

recording their evidence. As such, learned advocate submitted

that the prosecution has failed to prove guilt of the appellant. The

appeal needs to be allowed and the appellant be acquitted.
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7.          Per contra, learned APP strongly opposed the

submissions of learned advocate for the appellant. According to

learned APP, the statements of witnesses proved the guilt of the

appellant beyond all reasonable doubt and, therefore, their

evidence cannot be discarded. Learned APP has strenuously

supported the impugned judgment and order passed by learned

Special Judge. According to him, learned Special Judge after

analyzing evidence brought on record in proper perspective, has

rightly delivered the impugned judgment and order and has

rightly convicted the appellant. There is no scope for interference

in the impugned judgment. He, therefore, prayed for dismissal of

the present appeal.


8.          After hearing the submissions of learned advocates

and with their assistance, after going through evidence on record

carefully, it is apparent that the witnesses have not supported

each other on the point of demand. The evidence of PW-1

regarding the alleged demand is not consistent with his earlier

statement, and the material omission brought on record through

PW-4 affects the credibility of his version. The evidence of PW-2

does not satisfactorily cure this material deficiency. The evidence
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led by the prosecution, when considered as a whole, does not

establish the factum of demand of illegal gratification beyond

reasonable doubt. Learned advocate for the appellant has rightly

placed reliance on the judgment in Suresh Ashtankar (supra) and

has rightly pointed out the testimony of PW-2 panch witness,

who deposed that he was given the statement prior to 04-05

months for reading. This circumstance certainly affects the

weight to be attached to the testimony of PW-2, particularly

when his version on the material aspect of demand is not

otherwise satisfactorily corroborated.


9.          The evidence of Ramesh Doke (DW-1) and

Bhausaheb Doke (DW-2) is corroborated with regard to the

explanation given by the appellant/ accused that the amount

which he had accepted was not bribe, but it was hand loan given

to Ramesh Doke. Even assuming the physical receipt/recovery of

the amount is established, the prosecution has failed to establish

that the amount was received as illegal gratification pursuant to a

demand made by the appellant. The basic requirement of demand

is required to be proved beyond all reasonable doubt. In order to

prove the charges for the offence punishable under Section 13(1)
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(d) r/w Section 13(2) of the PC Act, the proof of demand of

illegal gratification is absolutely necessary as it is sine qua non of

the offence. If the prosecution fails to prove this demand of

illegal gratification, the charge against for the aforesaid offences

would fail. It is clearly established in several judgments

delivered by the Hon’ble Supreme Court including the judgment

in Neeraj Dutta vs. State (Govt. of NCT of Delhi) reported in

(2023) 18 SCC 251,        that mere possession and recovery of

currency notes from the possession of the accused without proof

of demand would not establish the offence under under Section

13(1)(d) r/w Section 13(2) of the P.C. Act. In absence of proof of

demand and illegal gratification and use of corrupt or illegal

means to obtain any valuable or pecuniary advantage, it cannot

be said that the offence of taking bribe is proved. Thus, the proof

of demand has been held to be indispensable ingredient.

Therefore, failure on the part of prosecution to prove demand and

illegal gratification, would be fatal and mere recovery of the

amount from the appellant/accused            would not entail his

conviction for the said offences.


10.          On careful appreciation of the evidence, this Court
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finds that the prosecution has failed to establish, beyond

reasonable doubt, that the appellant had demanded Rs.1,000/-

from the complainant as illegal gratification. The alleged demand

made immediately prior to the trap is not satisfactorily

established through the testimony of PW-1, and the material

omission brought on record through the evidence of PW-4

assumes significance in this regard. The evidence of PW-2 also

does not inspire sufficient confidence so as to cure the said

deficiency in the prosecution case. In the absence of reliable

proof of the initial demand, the mere recovery of Rs.1,000/- from

the appellant cannot, by itself, establish that the amount was

accepted by him as illegal gratification. The prosecution was

required to prove the nexus between the amount allegedly

received and the demand of illegal gratification. Since the

foundational fact of demand has not been proved beyond

reasonable doubt, the alleged acceptance of the amount as bribe

also becomes doubtful. Consequently, the benefit of such doubt

must go to the appellant.


11.         It is well settled that the presumption under Section

20 of the PC Act can be invoked only after the prosecution
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establishes the foundational facts of demand and acceptance of

illegal   gratification.   In   the    present   case,     as     discussed

hereinabove, the prosecution has failed to establish the demand

of illegal gratification by the appellant beyond reasonable doubt.

Consequently, the foundational facts necessary for invoking the

statutory presumption under Section 20 are absent. The Supreme

Court in B. Jayaraj v. State of Andhra Pradesh , (2014) 13 SCC

55, P. Satyanarayana Murthy v. District Inspector of Police ,

(2015) 10 SCC 152, N. Vijayakumar v. State of Tamil Nadu,

(2021) 3 SCC 687 and Neeraj Dutta v. State (Govt. of NCT of

Delhi), (2023) 2 SCC 353, has reiterated that mere recovery of

currency notes, in the absence of proof of demand and

acceptance of illegal gratification, is insufficient to sustain a

conviction. Therefore, in the absence of proof of the foundational

facts, the presumption under Section 20 cannot be drawn in

favour of the prosecution.


12.           In view of the foregoing discussion, this Court is of

the considered view that the prosecution has failed to prove,

beyond reasonable doubt, the demand of illegal gratification by

the appellant and its acceptance pursuant thereto. Consequently,
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      the foundational facts necessary to sustain the conviction under

      Section 7 and Section 13(1)(d) read with Section 13(2) of the PC

      Act have not been established. Mere recovery of the currency

      amount, in the absence of proof of demand of illegal

      gratification, cannot sustain the conviction. The appellant is,

      therefore, entitled to the benefit of doubt. Accordingly, the

      following order is passed:


                                   ORDER
      (i)   The Criminal Appeal is allowed.
      (ii) The judgment and order dated 23.09.2010 passed by the
      learned Additional Sessions Judge, Ahmednagar, in Special Case
      No.12 of 2005, convicting and sentencing the appellant for the
      offences punishable under Section 7 and Section 13(2) read with
      Section 13(1)(d) of the Prevention of Corruption Act, 1988, is
      quashed and set aside.
      (iii) The appellant/accused is acquitted of the offences with
      which he was charged.
      (iv) The appellant is on bail. His bail bond stands cancelled and
      the surety, if any, stands discharged.
      (v)   The fine amount, if deposited, be refunded to the appellant.
      (vi) The record and proceedings be sent back to the concerned
      Court.



kps                                  (SUSHIL M. GHODESWAR, J.)